By James Alan Fox, Lipman Family Professor of Criminology, Law and Public Policy, Northeastern University

Published: 12/03/2012

It has been nearly two years since 24-year-old Jared Lee Loughner opened fire upon a crowded plaza in Tucson, killing six and wounding several others, including U.S. Rep. Gabrielle Giffords. Yet, after all the legal maneuvering, Loughner received sentence that guarantees he will never again walk free.

Mass murderers like Loughner or Winchester's Thomas Mortimer deserve nothing less than life imprisonment given the enormity of their crimes. While absolutely fair and appropriate for such atrocities, there are many other offenders, particularly here in Massachusetts, who receive the very same fate but who arguably deserve something less extreme.

In Massachusetts all defendants convicted of first degree murder are sent away to prison for life without the possibility of parole, regardless of any mitigating circumstances surrounding the offense or the offender. By contrast, two dozen states having life without parole on the books include it among a group of alternative sentences depending on the circumstances of the offense and the offender.

As one of the states that prohibits parole for first degree murderers, Massachusetts ranks high on the list in terms of the percentage of its incarcerated population having no hope of ever walking free (except for the very remote possibility of executive clemency). As of 2008 (see table below), according to statistics compiled by the Sentencing Project in Washington, D.C., 8.7% of the Massachusetts state prison population was under a life without parole sentence, a level that ranked third (behind Louisiana and Pennsylvania) and was four times the national average.

Of course, many states employ a more extreme sanction -- the death penalty -- among the possible sentences for first degree murder. Might the inordinately high proportion of whole-lifers in Massachusetts be a statistical artifact of our refusal to put these offenders to death?

Apparently, our extreme usage of life without parole cannot so easily be dismissed. Even when adding to the mix all those murderers given a death sentence (either executed or on death row), Massachusetts still stands at the high-end in sentencing murderers to die in prison either by natural causes or by action of the state executioner.

If the most severe punishment is to be reserved for the "worst of the worst," then life without parole makes sense for serial killers, mass murderers, certain repeat violent offenders, and those who rape or torture victims before murdering them. However, in Massachusetts life without parole eligibility is mandatory for cases of felony murder, even though homicide may not have been part of the plan. It is also mandatory for those convicted in joint ventures, even if they were not the one to pull the trigger or plunge the knife.

Many other states allow for parole eligibility as a sentencing option for murder, if the circumstances warrant it. Included among the states that allow penalty short of life without parole are Mississippi and Texas, but not Massachusetts.

So maybe it is time for Massachusetts to infuse some flexibility into sentences for first degree murder by permitting parole consideration after, say after 30 years, in those cases where mitigation outweighs aggravation. Such factors as being a first offender, suffering from psychological conditions that fall outside of the narrow definition of legal insanity, being the follower in a group-perpetrated homicide or voluntarily surrendering and confessing to the crime should matter.

Giving judges or juries options besides life without parole has several advantages, and not just for the offender. Parole eligibility would encourage participation in drug rehab and other treatment programs currently eschewed by those who have no prospect of ever walking free. Parole, as a strong incentive for pro-social behavior, helps to maintain institutional order. Also, why keep locked up large numbers of aging prisoners (with their expensive health needs) whose criminality is well in the past and thereby limiting available for younger, more active offenders? Prison space is an expensive commodity; we should utilize it more wisely and sparingly.

Importantly, whatever the justification for granting parole eligibility may be in a particular case, that is not the same as parole release. Parole is never a guarantee; inmates should be released only if they earn it.

Of course, as victim advocates say, there's no parole for those who were murdered. And some say that paroling murderers adds insult to injury. However, many other Western nations do not employ life without parole (or the death penalty). Apparently, many reasonable people do not believe that murderers must necessarily forfeit their life or their freedom.

Here in the U.S., we often dismiss long prison sentences as "mere slaps on the wrist" or "county club vacations" when neither characterization even comes close to the truth. Ask anyone who has spent decades deprived of their freedom.

So it is about time to reintroduce rationality into the sentencing process, even for murder. Not all murders are the same in severity, and not all murderers are the same in dangerousness. So while life without the possibility of parole is justifiable for some first-degree murderers, like Loughner, it is certainly not appropriate for all.

Editor's note: Reprinted with permission - Author James Alan Fox is the Lipman Family Professor of Criminology, Law, and Public Policy at Northeastern University. He is the author of the Boston.com blog "Crime and Punishment". He has written 18 books, including his newest, "Violence and Security on Campus: From Preschool through College." He has published dozens of journal and magazine articles, and hundreds of freelance columns in newspapers around the country, primarily in the areas of multiple murder, youth crime, school and campus violence, workplace violence, and capital punishment.

Comments:

stephanelombo on 12/08/2012:

The best way to curb crime is the death penalty.Becaus even if the offender spend 10 years in death row ,he will executed after having used all legal means to see his case overturn.After he has died,the offender will no longer be a threat to society and it cost less to tax payers.
But the alternative life without parole is good option but will cost more to taxe payers because it is life long commitment: food, clothing, medical care and it will last until the end of the natural life of the offender some might live hundred year.And last option: electronic tag or bracelet it signal the offender whereabout but not what the offender real intentions are.Not cost effictive, not really efficient and it will require a network and team to monitor all the movements of offenders at the same time: a logistical nightmare.Electronic tag or bracelet can be used for first time offender with petty crime.Not be used for serious offenders and hardned crimanals.
Mr.Stephane luako Lombo
Kinshasa
DRCONGO

CP4Ab01i5hm3n7 on 12/05/2012:

Professor Fox, very true. There is a need now of some form of pre-sentencing classification calculus to determine appropriate length of the sentence and also not forgetting treatment as well. That said, I do think its difficult to implement these measures at the moment given that the nation is facing fiscal and financial difficulties. Even though there is no implementation, I think most institutions should design and come out some sort of formula or yardstick for such measurements. The US has one of the highest population behind bars and the more people enhanced in institutions the more problems penal institutions are going to face. These formulas should be readily available when the nation wishes to implement them.